PROVING – OR DISPROVING-EMPLOYMENT DISCRIMINATION

CLAIMS

Presented by Steven E. ClarkNational Business Institute Live Teleconference

December 5, 2017

1:00pm – 2:30 pm ET

1. BURDENS OF PROOF: ENDA, TITLE VII

AND OTHER CONSIDERATIONS

A. ENDA (EMPLOYMENT NON-DISCRIMINATION ACT) AND THE EQUALITY ACT

• Senate Bill 815, the 2013 version of ENDA1 would prohibit

employment discrimination on the basis of sexual orientation or

gender identity.

• Currently 21 states, including the District of Columbia, have

laws which make it illegal for current and potential employers

to discriminate against an individual’s stated or perceived

sexual orientation.

• Seventeen states, including the District of Columbia, have laws

which prohibit current or potential employers from

discriminating against employee’s gender identity.

• ENDA would essentially give LGBT Americans full rights under

Title VII of the Civil Rights Act of 1964, by making it illegal to

discriminate against LGBT individuals in the workplace on a

federal level. Although SB 815 passed the Senate, it was killed

in committee in the House of Representatives.

• The Equality Act, H.R. 2282, S. 1006,2 was introduced as a

bipartisan measure in Congress on May 2, 2017.

• The Equality Act would amend existing civil rights law.

• It would amend the Civil Rights Act of 1964 to prohibit

discrimination in public spaces and services and federally

funded programs on the basis of sex.

A fact sheet on ENDA can be found at: 1https://www.transequality.org/sites/default/files/docs/resources/Factsheet_ENDAJan2014_FINAL.pdf. 2See https://www.govtrack.us/congress/bills/115/hr2282/text/ih.

B. TITLE VII

• Courts have established three ways of proving intentional

discrimination under Title VII of the Civil Rights Act of 1964:

A. Circumstantial evidence

B. Direct evidence

C. A pattern or practice of discrimination.

McDonnell Douglas established that in an employment

discrimination case:

1. The plaintiff/employee must first establish a prima facie

case of discrimination.

2. The defendant/employer must produce evidence of a

legitimate non-discriminatory reason for its actions.

3. The plaintiff must then be allowed a fair opportunity to

present facts to show an inference of discrimination.

McDonnell Douglas does not apply if the plaintiff presents

direct evidence of discrimination.

• Direct evidence proves the fact of discrimination without

inference or presumption.

• Direct evidence includes any statement or written document

demonstrating a discriminatory motive on its face.

Once direct evidence is presented, the burden shifts to the

employer to establish by a preponderance of the evidence that it

would have taken the same action regardless of the forbidden

factor.

Pattern or practice does not focus on a particular

employment decision. Instead, it focuses on a pattern of decision

making.

C. OTHER CONSIDERATIONS

Title VII not only prohibits overt discrimination. An employee

establishes a prima facie case of disparate impact by:

• Identifying the specific employment practice being challenged.

• Establishing the disparate impact of the practice(s) on the

protected group.

• Demonstrating that the disparity is caused by or the result of one

or more identified employee practices.

Once disparate impact is established, the burden shifts to

the employer to show that the challenged employment practice is

job related and consistent with business necessity. The employee

may overcome the business necessity defense by demonstrating

the existence of alternative employment practices which do not

cause adverse impact which the employer refused to adopt.

Once again, the ultimate burden of proof remains with the

plaintiff/employee.

2. SUFFICIENT DOCUMENTATION TO PROVE PRIMA FACIE CASES

The employee’s burden at the prima facie case is not onerous

and requires:

• The plaintiff is a member of a protected group, such as race, sex,

ethnicity, disability, religion, gender, age.

• Proof of an adverse employment action or injury caused by the

defendant.

• The action caused damages to the plaintiff/employee.

Using a baseball analogy, a prima facie case is like getting to first

base. To ultimately prevail, however, the runner must cross home

plate.

What are adverse employment actions?

• Being turned down for a job for which the applicant is qualified

• Being demoted

• Being fired

• Being placed on administrative leave

• Deprived of ability to take promotional exam

• Loss of pay

• Denial of transfer

• Cut in monthly base salary

• Low rating on job performance review

• Decreased job responsibilities

• Failure to receive promotions

• Negative job reference

• Failure to hire• Disciplinary suspension

3. HOW EMPLOYERS CAN SATISFY THE BURDEN OF PRODUCTION

The employer need only produce evidence that, if ultimately

believed by the trier of fact, establishes a legitimate non-

discriminatory reason for its action. In order for the plaintiff to

prevail, a judge or jury must be convinced that the employer’s

actions were intentionally discriminatory.

The establishment of a prima facie case is rebutted once the

employer comes forward with a non-discriminatory reason for its

adverse employment action. This is known as the Burdine Hicks

analysis.

If the defendant carries [its] burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.

The Court, in Reeves v. Sanderson Plumbing Products, Inc.

addressed the kind and amount of evidence necessary to sustain a

jury’s verdict in an age discrimination case. Reeves brought an age

discrimination action after being terminated. The employer’s

stated reasons for terminating Reeves was that he had failed to

maintain accurate attendance records.

4. BURDEN OF PERSUASION: ESTABLISHING PRETEXT FOR

DISCRIMINATION

The definition of pretext is “a purpose or motive alleged or

an appearance assumed in order to cloak the real intention or

state of affairs.”3

Pretext is generally the single most important issue in

employment discrimination cases because the employer usually

will be able to articulate a legitimate non-discriminatory reason

for its adverse employment action. The employee must then carry

its ultimate burden of persuasion by showing that the proffered

reason is false.

Pretext is critical at two stages of a discrimination case. First,

at the summary judgment stage, and second, before the jury.

Both stages require proof that the employer’s reason(s) are false,

and the real reason is a discriminatory one.

From the plaintiff’s counsel perspective, it is essential to begin

the process of investigation and discovery to gather necessary

evidence to raise a fact question if the employer’s counsel moves

for summary judgment on the discrimination claim.

Document production requests should be sent to obtain the

employer’s records, including electronic communications, such as

email, texts, chat messages, in addition to internal memos and more

formal written communications. The requests should capture

communications up the supervisory chain.

The Court in McDonnell Douglas articulated several methods of

showing pretext, including:

• Instances in which persons outside the protected class were treated better for comparable offenses.

• The manner in which the employee was treated by the employer while employed.

• The employer’s reaction to “legitimate civil rights activities.” • Statistics concerning the employer’s employment policy and

practice with respect to minority employment insofar as it may suggest a general pattern of discrimination.

5. HOW EMPLOYER DOCUMENTATION MAKES OR BREAKS

DISCRIMINATION CLAIMS

Vasquez filed an internal complaint of sexual harassment

against a co-worker who sent bawdy text messages. She was fired

when the co-worker deceived the company’s internal

investigators by manipulating other text messages and photos to

make it appear that Vasquez was a willing participant.

Many people approach email, text and chat messages very

informally, and do not review the content critically before hitting

the send button. Discovery of this information may make the

critical difference whether an employment discrimination case

survives summary judgment or supports a jury finding of

discrimination.

6. ADDITIONAL CONSIDERATIONS FOR RETALIATION CLAIMS

Retaliation claims are more likely to survive summary

judgment due to the subjective issue of intent, as opposed to

discrimination claims. Retaliation claims are also considered to

be one of the more difficult clams to defend at trial, because

they are built on timing, subjectivity, and inference.

Also, since retaliation claims imply retribution, or conduct

that is intentional, blatant, and malicious, there is an increased risk

of an award of punitive damages.

The anti-retaliation language of Title VII extends to both

employees who have “opposed any practice made an unlawful

employment practice” [under the statute] (the “opposition clause”)

and to employees who have made a charge, testified, assisted, or

participated in any manner in an investigation proceeding or

hearing [under the statute] (the “participation clause”).

Timing is important in retaliation cases. A substantial lapse

in time between a protected activity and the adverse employment

action may negate an inference of retaliation where the

culminating event is the last step in a process that began before

the protected activity, an inference of retaliation may be dispelled.

7. CURRENT ISSUES AND UPDATES: LGBT DISCRIMINATION, NATIONAL ORIGIN DISCRIMINATION, ETC.

LGBT DiscriminationBy the end of 2016, 20 states, plus Washington D.C., banned

discrimination based on sexual orientation and gender identity or

expression in employment, housing, and public accommodations.

Further, there have been a number of state bills which target

transgender persons in their use of appropriate facilities,

including restrooms, or restricting transgender student’s ability to

fully participate in school.

The Trump administration has angered gay rights activists

by having the Justice Department file an amicus brief in a federal

appeals court in New York involving gay skydiving instructor

Donald Zarda who claimed he was fired from his skydiving firm

because he was gay.

In April, 2017, the full bench of the 7th Circuit voted 8-3 to

overrule a series of prior decisions which held that sex

discrimination did not extend to sexual orientation discrimination.

The majority opinion concluded that bias against gays and

lesbians amounts to gender discrimination because it treats

individuals differently on account of their sex and their failure to

conform to gender stereotypes.

National Origin Discrimination

The Immigration Act of 1924, or Johnson-Reed Act, including

the National Origins Act, and Asian Exclusion Act, limited the

annual number of immigrants who could be admitted from any

country based on the % of people from that country who were

already living in the U.S. based on U.S. Census. The Act controlled

“undesirable” immigration by establishing quotas, and

barring immigrants of some specific national origins.

The Trump administration’s proposal was to call a commission

to develop policies to “keep immigration levels, measured by

population share, within historic norms,” which would signal a

return to immigration policies under the National Origins Act.

QUESTIONS??